5 ms·

Why Software Patents Are Bad, Period

31 points by doppp 10y ago

Gibbon1 10y ago
A friend who is a patent lawyer gave me a short spiel on why software patents are bad. I'll repeat it. We have two types of intellectual property protection. Patents and copyright. And they are oriented towards too different categories. Copyright is designed to create a working market for artists, writers, musicians, etc. These people's work is characterized be low output and hit and miss success. A writer might complete a two dozen works and two of which make any money. So you need protection on the order of a human lifetime. Patents. Patents are totally misunderstood. The core of a patent isn't an idea. Nor is it the answer to a question, how do we do X. Really the core of the patent is the question itself. Knowing which questions are important is what is hard. And patents traditionally apply to physical things, because the physical world is very hard to reason about. It takes a lot of work to figure out and that is what needs protection. The proper period of protection is the course of a product lifecycle. So 20 years, something like that. Software doesn't fit into either of these. Primarily because for most software the output is determined very mechanically from the requirements. (Unlike, gee a flying car would be nice, or write me a beloved novel that people will still buy 50 years hence). And software ages like yesterdays fish. His comment is, Windows 3.1, 25 years old and who cares. But it's copyrighted for another 75 years. So software needs it's own category of protection, yes but that is much shorter.
- kwhitefoot 10y ago
  Not bad except that there really is no reason to reward people with a lifelong monopoly via copyright. The term in the Act of Anne that first formalised copyright was 12 years and I think that was long enough.
- Noseshine 10y ago
  While I too am against software patents, I have some issues with one line of reasoning here. > software ages like yesterdays fish That is not true for a lot of software. The example has been very carefully selected, of course the most widely distributed piece of software that heavily interacts with the hardware, itself being developed at a rapid pace, changes a lot. However, a lot of commercially used software has a much more glacial pace. That is especially true for internally used software with no outside market, where a business simply has no reason to invest as long as it works. Decades old software is quite common - and with the aid of VMs we'll keep a lot of it for even longer now. I also miss even the attempt to show that even if I would just accept the statement at face value it would be relevant to why software patents are bad? (Again, a statement I actually agree with.) If it's obsolete a patent for the now obsolete piece of software should be less of a problem: > His comment is, Windows 3.1, 25 years old and who cares. ...because as you write, "who cares"? My main problem is that the entire concept is fuzzy as hell. For example, US patent law excludes "abstract ideas" [0], but software is an abstract idea. Looking at an early example for a software patent "...efficient memory management for the simplex algorithm...implemented by purely software means" [1] I can't find otherwise. [0] https://en.wikipedia.org/wiki/Software_patent https://en.wikipedia.org/wiki/Software_patent [1] https://en.wikipedia.org/wiki/Software_patent#Early_example_of_a_software_patent https://en.wikipedia.org/wiki/Software_patent#Early_example_...
- lordnacho 10y ago
  Doesn't that argue for an ad hoc expiry? Product cycles in mobile phones and washing machines are different.
  - PatentTroll 10y ago
    Yeah, it's an impossible to implement idea. Lawyers would game the hell out of that system.
- Finnucane 10y ago
  "These people's work is characterized be low output and hit and miss success. A writer might complete a two dozen works and two of which make any money. So you need protection on the order of a human lifetime." Whereas programmers are always successful? And the reason given here for "protection on the order of human lifetime" is spurious, since the longer copyright terms are more for the benefit of corporate, rather than individual, creators. Commercial viability has no bearing on whether a work is eligible for copyright. There's really no aspect of software that couldn't be covered by copyright, except perhaps the requirement of 'novelty'--certain categories are not copyrightable, but in the case of software, its really the novelty of the whole work that counts. The important thing about copyright and patents here is that they're supposed to be mutually exclusive--categories of things that are patentable are not copyrightable, and vice versa.
- PatentTroll 10y ago
  Eh, the term isn't the worst part of software patents. Obviousness and bad law are the worst parts. The term only exacerbates the issue
meshr 10y ago
Is there alternative to patent system for anyone who just want to have a prove that he was first (just in case)? Something like store patent in blockchain.
- cmrx64 10y ago
  The technology exists: trusted timestamping and commitment schemes are well-understood. But does it matter in today's adversarial patent environment? You still need to actually appeal the thing, which takes time and lawyers.
- PatentTroll 10y ago
  Publish. Post to a blog and get it into the wayback machine, nobody will ever be able to patent it then.
- etendue 10y ago
  You can publish in Research Disclosure (http://www.researchdisclosure.com http://www.researchdisclosure.com) which exists expressly for this purpose.
chrisbennet 10y ago
A great argument against software patents is this: Patents are designed to "promote the progress of science and the useful arts".[1] In the case of software, patents are a net drag on innovation and thus not worth the cost. Software developers are innovating in spite of patents, not because of them. [1] "The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"
- jstanley 10y ago
  > In the case of software, patents are a net drag on innovation and thus not worth the cost. Software developers are innovating in spite of patents, not because of them. I agree with you, but for the argument to have any weight you need to show that it is true, not simply state it.
  - chrisbennet 10y ago
    OP here, someone down-voted you so I up-voted you for making an excellent point.
- deleted 10y ago
  [deleted]
lordnacho 10y ago
What little experience I have with patents tends to push me to agree. It's a net negative for society. - I got a software patent once, on a blockchain related idea. Why did I patent it? Because my partners thought that if we didn't, we'd be in a bad position if things took off. So then we had to spend time and money researching what lawyer to get, explaining to them what the invention was, and so on. Time that could be better spent building a product. And to be honest, the idea was trivial to anyone who knows how to code. But that leads me to another point... - The fact that things can be patented leads to a culture of ideas being some sort of resource, like gold or oil. They're not. And we shouldn't deify people who have good ideas. Ideas are simply a natural consequence of exposure to an environment. Literally every idea ever has been "let's take X and Y, and use it for Z". Stick someone in the world, and they will have ideas. Sometimes two people will have very similar ideas. - A friend of mine is an inventor. Of the old school, the kind of guy who has a 3D printer because his inventions are objects rather than software. Like any tech guy, he gets ideas. Every time he gets one, he has to spend time looking for an existing patent. He's canned several projects because something turned up. For instance my wife started doing some research in the medical field because he'd come up with some device, and it basically ended up getting canned because someone in China had done something similar. He's spent significant time training himself in how to do a patent search, which is not a trivial thing to do. The market should just be free. You invent a better mousetrap? Why shouldn't I make it and sell it? Maybe I can sell it more cheaply. Or I can make one that fits the needs of the consumer of some segment better. Why should I be stopped? And what about the argument that it incentivises research? I don't know what the state of the evidence for this claim is, but I would think that just about any interesting line of research will be known to more than one group of researchers. For instance, DNA was being looked at by several groups before Watson and Crick published. In science space, it's somewhat ok, maybe it's bad that one group gets a lot more credit than those who went down a different line, but those other guys can still publish papers with valuable information. But if you're researching a cure for cancer (imagine it's just a certain unobtainium complex), and someone else finds it first, you are screwed. In fact, if you know that many people are making progress on a problem, you have a powerful disincentive to work on it. In fact, you could even have an equilibrium where a line of research is not pursued because someone else might get ahead. The econ 101 idea that people will invent stuff on the basis that their investment will be protected is naive. They may never get to the point where they're protected. Aside from that, look at fields where intellectual property is not protected from copycats. Imagine if you could only buy suits from one brand. Or if baseball caps only had one logo. And so on. There's plenty of fields where me-too marketing is beneficial to society.
PatentTroll 10y ago
Copyright is no substitute for patents. If you implement that same thing in another language, it would probably be different enough to avoid copyright infringement. So the fact that this author has licensed software under copyright has nothing to do with copyright's effectiveness in protecting their ideas. Also, this author is apparently unaware that "pure software" patents have never existed, and do not exist today. This is especially true in the post-Enfish world we now live in. The author is spot-on that obviousness is broken, that's true. Also a good point that patent quality is ill-defined. But those of us who work in this industry absolutely know it when we see it. Overall, this article doesn't do a great job of explaining what is actually broken and why software patents suck. But saying that software as a class should not be protected like other forms of labor is insulting to software developers. What a software developer does is just as important as what a mechanical engineer does.

31 points by doppp 10y ago

A friend who is a patent lawyer gave me a short spiel on why software patents are bad. I'll repeat it. We have two types of intellectual property protection. Patents and copyright. And they are oriented towards too different categories. Copyright is designed to create a working market for artists, writers, musicians, etc. These people's work is characterized be low output and hit and miss success. A writer might complete a two dozen works and two of which make any money. So you need protection on the order of a human lifetime. Patents. Patents are totally misunderstood. The core of a patent isn't an idea. Nor is it the answer to a question, how do we do X. Really the core of the patent is the question itself. Knowing which questions are important is what is hard. And patents traditionally apply to physical things, because the physical world is very hard to reason about. It takes a lot of work to figure out and that is what needs protection. The proper period of protection is the course of a product lifecycle. So 20 years, something like that. Software doesn't fit into either of these. Primarily because for most software the output is determined very mechanically from the requirements. (Unlike, gee a flying car would be nice, or write me a beloved novel that people will still buy 50 years hence). And software ages like yesterdays fish. His comment is, Windows 3.1, 25 years old and who cares. But it's copyrighted for another 75 years. So software needs it's own category of protection, yes but that is much shorter.

kwhitefoot 10y ago
Not bad except that there really is no reason to reward people with a lifelong monopoly via copyright. The term in the Act of Anne that first formalised copyright was 12 years and I think that was long enough.
Noseshine 10y ago
While I too am against software patents, I have some issues with one line of reasoning here. > software ages like yesterdays fish That is not true for a lot of software. The example has been very carefully selected, of course the most widely distributed piece of software that heavily interacts with the hardware, itself being developed at a rapid pace, changes a lot. However, a lot of commercially used software has a much more glacial pace. That is especially true for internally used software with no outside market, where a business simply has no reason to invest as long as it works. Decades old software is quite common - and with the aid of VMs we'll keep a lot of it for even longer now. I also miss even the attempt to show that even if I would just accept the statement at face value it would be relevant to why software patents are bad? (Again, a statement I actually agree with.) If it's obsolete a patent for the now obsolete piece of software should be less of a problem: > His comment is, Windows 3.1, 25 years old and who cares. ...because as you write, "who cares"? My main problem is that the entire concept is fuzzy as hell. For example, US patent law excludes "abstract ideas" [0], but software is an abstract idea. Looking at an early example for a software patent "...efficient memory management for the simplex algorithm...implemented by purely software means" [1] I can't find otherwise. [0] https://en.wikipedia.org/wiki/Software_patent https://en.wikipedia.org/wiki/Software_patent [1] https://en.wikipedia.org/wiki/Software_patent#Early_example_of_a_software_patent https://en.wikipedia.org/wiki/Software_patent#Early_example_...
lordnacho 10y ago
Doesn't that argue for an ad hoc expiry? Product cycles in mobile phones and washing machines are different.
- PatentTroll 10y ago
  Yeah, it's an impossible to implement idea. Lawyers would game the hell out of that system.
Finnucane 10y ago
"These people's work is characterized be low output and hit and miss success. A writer might complete a two dozen works and two of which make any money. So you need protection on the order of a human lifetime." Whereas programmers are always successful? And the reason given here for "protection on the order of human lifetime" is spurious, since the longer copyright terms are more for the benefit of corporate, rather than individual, creators. Commercial viability has no bearing on whether a work is eligible for copyright. There's really no aspect of software that couldn't be covered by copyright, except perhaps the requirement of 'novelty'--certain categories are not copyrightable, but in the case of software, its really the novelty of the whole work that counts. The important thing about copyright and patents here is that they're supposed to be mutually exclusive--categories of things that are patentable are not copyrightable, and vice versa.
PatentTroll 10y ago
Eh, the term isn't the worst part of software patents. Obviousness and bad law are the worst parts. The term only exacerbates the issue

meshr 10y ago

Is there alternative to patent system for anyone who just want to have a prove that he was first (just in case)? Something like store patent in blockchain.

cmrx64 10y ago
The technology exists: trusted timestamping and commitment schemes are well-understood. But does it matter in today's adversarial patent environment? You still need to actually appeal the thing, which takes time and lawyers.
PatentTroll 10y ago
Publish. Post to a blog and get it into the wayback machine, nobody will ever be able to patent it then.
etendue 10y ago
You can publish in Research Disclosure (http://www.researchdisclosure.com http://www.researchdisclosure.com) which exists expressly for this purpose.

chrisbennet 10y ago

A great argument against software patents is this: Patents are designed to "promote the progress of science and the useful arts".[1] In the case of software, patents are a net drag on innovation and thus not worth the cost. Software developers are innovating in spite of patents, not because of them. [1] "The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

jstanley 10y ago
> In the case of software, patents are a net drag on innovation and thus not worth the cost. Software developers are innovating in spite of patents, not because of them. I agree with you, but for the argument to have any weight you need to show that it is true, not simply state it.
- chrisbennet 10y ago
  OP here, someone down-voted you so I up-voted you for making an excellent point.
deleted 10y ago
[deleted]

lordnacho 10y ago

What little experience I have with patents tends to push me to agree. It's a net negative for society. - I got a software patent once, on a blockchain related idea. Why did I patent it? Because my partners thought that if we didn't, we'd be in a bad position if things took off. So then we had to spend time and money researching what lawyer to get, explaining to them what the invention was, and so on. Time that could be better spent building a product. And to be honest, the idea was trivial to anyone who knows how to code. But that leads me to another point... - The fact that things can be patented leads to a culture of ideas being some sort of resource, like gold or oil. They're not. And we shouldn't deify people who have good ideas. Ideas are simply a natural consequence of exposure to an environment. Literally every idea ever has been "let's take X and Y, and use it for Z". Stick someone in the world, and they will have ideas. Sometimes two people will have very similar ideas. - A friend of mine is an inventor. Of the old school, the kind of guy who has a 3D printer because his inventions are objects rather than software. Like any tech guy, he gets ideas. Every time he gets one, he has to spend time looking for an existing patent. He's canned several projects because something turned up. For instance my wife started doing some research in the medical field because he'd come up with some device, and it basically ended up getting canned because someone in China had done something similar. He's spent significant time training himself in how to do a patent search, which is not a trivial thing to do. The market should just be free. You invent a better mousetrap? Why shouldn't I make it and sell it? Maybe I can sell it more cheaply. Or I can make one that fits the needs of the consumer of some segment better. Why should I be stopped? And what about the argument that it incentivises research? I don't know what the state of the evidence for this claim is, but I would think that just about any interesting line of research will be known to more than one group of researchers. For instance, DNA was being looked at by several groups before Watson and Crick published. In science space, it's somewhat ok, maybe it's bad that one group gets a lot more credit than those who went down a different line, but those other guys can still publish papers with valuable information. But if you're researching a cure for cancer (imagine it's just a certain unobtainium complex), and someone else finds it first, you are screwed. In fact, if you know that many people are making progress on a problem, you have a powerful disincentive to work on it. In fact, you could even have an equilibrium where a line of research is not pursued because someone else might get ahead. The econ 101 idea that people will invent stuff on the basis that their investment will be protected is naive. They may never get to the point where they're protected. Aside from that, look at fields where intellectual property is not protected from copycats. Imagine if you could only buy suits from one brand. Or if baseball caps only had one logo. And so on. There's plenty of fields where me-too marketing is beneficial to society.

PatentTroll 10y ago

Copyright is no substitute for patents. If you implement that same thing in another language, it would probably be different enough to avoid copyright infringement. So the fact that this author has licensed software under copyright has nothing to do with copyright's effectiveness in protecting their ideas. Also, this author is apparently unaware that "pure software" patents have never existed, and do not exist today. This is especially true in the post-Enfish world we now live in. The author is spot-on that obviousness is broken, that's true. Also a good point that patent quality is ill-defined. But those of us who work in this industry absolutely know it when we see it. Overall, this article doesn't do a great job of explaining what is actually broken and why software patents suck. But saying that software as a class should not be protected like other forms of labor is insulting to software developers. What a software developer does is just as important as what a mechanical engineer does.